Latest filings in Oracle patent case spell trouble for Google

Latest filings in Oracle patent case spell trouble for Google

Summary: Newly released documents from Oracle's copyright and patent lawsuit against Google contain sections that Google's lawyers fought unsuccessfully to keep confidential. The details support Oracle's claim that Google copied Java code, and one slide is certain to make Android OEMs nervous.

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The latest documents filed in Oracle’s copyright and patent lawsuit against Google contain more than a dozen chunks of information that Google’s lawyers fought to keep confidential. They lost, and the result is some embarrassing and possibly damaging disclosures.

Two documents filed yesterday were made public today and first reported by Florian Mueller on his FOSS Patents blog.

The most interesting revelations are in a 290-page report from Oracle’s expert witness, John C. Mitchell, Ph.D. Dr. Mitchell, a Professor of Computer Science at Stanford University and a heavyweight in programming circles whose work is incorporated in both the Java and .NET programming languages, was hired by Oracle (at a rate of $800 per hour) to testify on Google’s alleged infringement of Oracle’s copyrights and patents on Java, which it acquired when it purchased Sun in 2009.

Oracle’s most damning accusation is that Google directly copied Java source code for use in Android. The new documents directly address those claims.

[Confused by the claims and counter-claims in this case? See my follow-up: The real history of Java and Android, as told by Google]

A total of 12 sections in Prof. Mitchell’s report were marked as GOOGLE ATTORNEYS’ EYES ONLY or GOOGLE CONFIDENTIAL. Here’s a sampling of what Google wanted to redact:

  • “[A]ccording to Google’s records, a number of Google employees and contractors who worked on Android previously had access to Sun’s Java code.” One, Joshua Bloch, “was an architect of the Java platform at Sun [and] now works for Google … his name appears in the source code of several Java library files.”
  • “When asked about the significance of copyright protection for the specifications he wrote at Sun, Bloch replied: ‘[I]f someone else were to take this prose and publish it for profit, Sun would probably be upset, and with good reason.’”
  • Google exec Patrick Brady, in a June 2009 document titled “Android Strategy and Partnerships Overview,”  is quoted as saying “Android isn’t a new product to monetize; it’s a new medium to drive monetization on existing products.”
  • In a deposition, Bloch was asked whether he accessed Sun code while working at Google. “I don’t have a recollection, but I’m perfectly willing to believe that I did. You know, I think the similarity of the signature, the fact that, you know, the three arguments are in the same order and have the same name, you know, is a strong indication that it is likely that I did.”

One lengthy five page section of the expert witness report, marked as GOOGLE ATTORNEYS’ EYES ONLY, contains a slide from an internal Google presentation titled Android OC Quarterly Review – Q4 2010, by Andy Rubin et al. (Rubin runs the Android division at Google):

The section contains multiple quotes from confidential Google emails dating back as far as 2007 and documenting Google’s intention to create a full-fledged ecosystem based on the Java programming language. But Google has to be embarrassed by the second and third bullet points in that slide. “Do not develop in the open” contradicts Google’s oft-stated description of the platform. This, for example, was the company’s public statement earlier today in response to to an antitrust raid in South Korea:

Android is an open platform, and carrier and OEM partners are free to decide which applications and services to include on their Android phones.

Likewise, the explicit statement that Google gives “early access to the [Android] software to partners who build and distribute devices to our specification” is potentially troubling. The quid pro quo? “They get a non-contractual time to market advantage and in return they align to our standard.”

Play by Google's rules, and you get an advantage in the market. Try to innovate, and you'll start the race in second place.

The mention of Motorola is especially troubling given Google's plans to buy the handset maker. Google’s previous reference devices, the Nexus One and Nexus S, were from HTC and Samsung, respectively.

In a separate lawsuit involving Motorola and Microsoft, Google stated last month that Android contains “highly proprietary source code that Google does not even share with its partners, such as Motorola.” The new admission that Motorola has "early access" is certain to be disturbing to other OEM partners.

The second document, also filed yesterday, contains 13 exhibits—email messages and a slide deck—dating back to 2005 and early 2006. They trace the history of Google’s negotiations with Sun over open-sourcing the Java code for use in Android. The final exhibit is an e-mail from Andy Rubin to Google founders Sergey Brin and Larry Page and Senior VP Alan Eustace:

I’ve been working with Sun and pushing them to open source Java … [T]hey have conceptually agreed to open java and additionally they desire to broaden the relationship and become a customer of the Android ecosystem and Google. Their desire is to create a “distribution” of the Android system ala Redhat. … This is a huge step for Sun, and very important for Android and Google.

That agreement never happened, of course, and Oracle argues that the Java code was so important to Google that they simply copied it.

As this case unfolds, I am continually reminded of another company that dominated its industry until hubris, as documented in internal emails and other documents, brought it down to earth. Google’s lawyers and executives need to take a weekend and study the history of U.S. v. Microsoft to learn what not to do.

Topics: Google, Open Source, Oracle, Software Development

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124 comments
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  • RE: Latest filings in Oracle patent case spell trouble for Google

    This seems to be a pattern here.<br><br>PS. And in <a href="http://www.billshrink.com/blog/9747/android-os-top-selling-smartphone-in-the-u-s/" target="_blank">other news</a>...
    Return_of_the_jedi
    • RE: Latest filings in Oracle patent case spell trouble for Google

      @Return_of_the_jedi

      If you've seen Mad Men you won't be suprised. This is primarily an advertising company, not a software development one.
      tonymcs@...
    • Indeed there is

      "[A]ccording to Googles records, a number of Google employees and contractors who worked on Android previously HAD access to Suns Java code"<br><br>'Had' is past tense, one step different from what they're trying to prove.<br><br>"When asked about the significance of copyright protection FOR THE SPECIFICATIONS"<br><br>Specification not code? One step different from the thing they're claiming was copied.<br><br>"Android isnt a new product to monetize; its a new medium to drive monetization on existing products."<br><br>You're supposed to ignore the second part and read the first as 'it's a copy not new'... one sub-clause away from what he actually said.<br><br>"...Im perfectly willing to believe that I did. You know, I think the similarity of the signature, the fact that, you know, the three arguments are in the same order and have the same name, you know, is a strong indication that it is likely that I did"<br><br>'Willing to believe', I'm willing to believe in the existence of little green men. But I don't. Again one step away from what they wanted him to say. <br><br>"Do not develop in the open"<br>'Open' but not 'open source', one word different. Because open source software is often developed in secret.<br><br> "[T]hey have conceptually agreed to open java.."<br>Java 2 standard edition platform (from which their array claim stems) is GPL'd, so Sun did open Java in the only way that matters.
      guihombre
      • Good points.

        @guihombre
        Particularly good point about the difference between open source and developing code in front of an audience.
        JohnVoter
      • RE: Latest filings in Oracle patent case spell trouble for Google

        @guihombre

        Good points, but I think they represent some wishful thinking on your part. Google fought hard to prevent this information from coming forward, and there were good reasons for them doing so. If this case were being tried in the court of public opinion, they would have fought against the information coming forward to reduce the likelihood of negative public perception - they're a publicly held company - even if the information was, from a technical perspective, not damning. That would have been reason enough to prevent the information from coming forward. Unfortunately for them, it's being tried in the judiciary and they were clearly interested in keeping the information out of the evidence files to prevent a broad array of tech-savvy folks involved in the case from seeing that their business practices have been questionable at best. Parsing sentences as a defense is sometimes a reasonable tactic, but the courts will have little patience for it. They'll look for intent, and Google will find themselves having to decide how far to let this progress. It's also important to remember that this isn't a new issue that recently surfaced. It's been around for years. Here's a link to a good discussion back in 2007 re the same subject. The platform was new and raised questions then. It's just taken some time for the legal ramifications to fully surface. http://redmonk.com/sogrady/2007/11/05/android-the-gpl-and-java-the-qs-with-no-as/
        Vabraxys
      • RE: Latest filings in Oracle patent case spell trouble for Google

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    • ....and the surviving Microsoft is now a wiser company!

      @Return_of_the_jedi
      ...unlike SCO!
      kd5auq
      • RE: Latest filings in Oracle patent case spell trouble for Google

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    • google is not M$

      @Return_of_the_jedi
      and the copyright allegations are flat lies peddled by the axis of evil software companies.
      The Linux Geek
      • RE: Latest filings in Oracle patent case spell trouble for Google

        @The Linux Geek
        And you're trapped in the 90'$.

        The copyright allegations are valid and true otherwise it would have never made it to court in the first place. Good to see you're the all knowing when it comes to law, I'm sure that's your profession right? Yeah about that... There is no axis of evil aside of Google trying to rip off other peoples innovations. Google is a pile of trash and needs to be hauled off to the dump.

        Understand that if people were never acknowledged or rewarded for their innovations there would be a lack of motivation to innovate. Google only takes what others have worked so hard to provide and copy it then insert spyware to steal your information and shove advertisements in people's faces that no one really cares about aside of Google as they make money off the advertising companies which are stupid enough to think it actually produces business. It is a cash cycle that appears successful but in the end when people avoid all advertisements because they are so sick of them we will then see everyone drop the advertising bubble. How many people DVR T.V. to also* fast forward past commercials? I would have to say every friend of mine thus far... I don't even pay for television as I buy my movies to avoid any stupid advertisements and have what I want when I want it. If I want news I hop online and I have other things to avoid stupid pop ups and obnoxious adverts.

        As I've said a million times over... I love Linux but do not condone Google's horrible shady practices. I'd rather pay $150 for an OS that is ad free and does everything I want then to sacrifice all of my identity and individuality and have ads crammed in my face for some half baked playskool kids garbage.

        NT ktnxbai
        audidiablo
      • RE: Latest filings in Oracle patent case spell trouble for Google

        @audidiablo - Gotta agree with that - anybody who sees hard work being devalued definitely saps the desire to innovate...
        HypnoToad72
    • RE: Latest filings in Oracle patent case spell trouble for Google

      @Return_of_the_jedi

      Yeah, Florian Mueller just hates Android on a daily basis and tries to sound sophsticated in order to scare people into a direction. These lawsuits will take YEARS to resolve, not at the speed Florian Muller blogs at.
      DonRupertBitByte
      • RE: Latest filings in Oracle patent case spell trouble for Google

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  • RE: Latest filings in Oracle patent case spell trouble for Google

    I've been saying forever Google is the new Microsoft. They stick their hands in everything, trying to do so much at once, they're making a mess of their business. They are going to need to scale back and focus on quality, design and security. Android is what Windows Mobile used go be except with significantly better hardware and increasing malware infection risks.
    WixosTrix
    • RE: Latest filings in Oracle patent case spell trouble for Google

      @WixosTrix Google is 10 times worse than Microsoft ever was. Couple this, with the fact that this is a company with an atrocious privacy record, a company who reads people's email(electronically of course), and buys and sells personal user data for profit. Don't even get me started on the anti-trust issues they are facing in search, and in youtube with Microsoft buy not allowing them access to metadata, while they do for other companies.

      They deserve everything that is going to happen to them.
      jhammackHTH
      • RE: Latest filings in Oracle patent case spell trouble for Google

        @jhammackHTH

        So far every anti trust case bought against Google has failed. I do not think the FTC one will be any different.
        Knowles2
      • RE: Latest filings in Oracle patent case spell trouble for Google

        @jhammackHTH
        IE11
    • Agree with the observation about viruses

      @WixosTrix
      The open garden model of software is probably on its way out. But Android is essential to Google's future, when no one uses a desktop machine, or even a laptop, to do a search.
      JohnVoter
    • RE: Latest filings in Oracle patent case spell trouble for Google

      @WixosTrix

      At least Microsoft has a product to sell where Google just steals everything.
      audidiablo
      • You hate advertising, therefor google is not only guilty

        @audidiablo ... they are also evil.
        We get that you hate google. We don't care.
        This discussion is about facts. Got any?
        Otherwise stop cluttering up the real discussion.
        radleym